Marriage equality update
Looks like Hawaii may be next: legislative session set. County clerk takes applications in NC. Court battles in AR, NJ, MI, UT.
Arkansas
Hearing set in same-sex couples' lawsuit in Ark.
LITTLE ROCK, Ark. (AP) — A hearing has been set in a lawsuit brought by a group of same-sex couples challenging Arkansas' ban on gay marriage.
Online court records show that a hearing is scheduled for Dec. 12 in state court.
A group of same-sex couples filed the lawsuit against a number of county clerks and the head of the Arkansas Department of Finance and Administration this year.
The couples are seeking a preliminary injunction and declaratory judgment barring the enforcement of a constitutional amendment that Arkansas voters approved in 2004. That amendment defines marriage as between a man and a woman.
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Hawaii
Hawaii AG: State has authority on gay marriage; Special session to begin Oct. 28 OSKAR GARCIA, Associated Press
HONOLULU (AP) — Hawaii's attorney general issued a legal opinion Tuesday saying state lawmakers can act to legalize gay marriage without amending the Hawaii Constitution.
Attorney General David Louie said the Legislature "unquestionably" has the constitutional authority to consider and enact a bill during a special session later this month.
Louie's opinion comes in the form of a letter to state Sen. Les Ihara, a Democrat and majority policy leader. Ihara had questions about the law and criticisms from opponents who say it can't be passed without changing the state's charter document.
Louie said the plain language of the state's constitution gives lawmakers the option to restrict marriage if they want, as opposed to forcing the state to limit marriage to opposite-sex couples, as opponents to gay marriage argue.
The sentence at the center of the argument in the state constitution reads: "The legislature shall have the power to reserve marriage to opposite-sex couples."
Louie said the meaning is clear, and the Hawaii Supreme Court has ruled previously that if the constitution uses unambiguous language, it must be interpreted as written.
"Unlike other states that have passed constitutional amendments expressly banning marriage between individuals of the same sex, Hawaii's electorate instead chose to give the Legislature the authority to make this determination," Louie said.
The special session is scheduled to begin Oct. 28 and is expected to last about a week. Gov. Neil Abercrombie called the session after two U.S. Supreme Court rulings gave gay marriage proponents momentum to push for the laws to be changed in the state.
Hawaii currently recognizes same-sex civil unions that grant many rights similar to marriage but does not label the unions as marriage.
Opponents of the bill have said they think it should be considered during regular session, or put to a vote.
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Alabama
Retired bishop to ignore gay wedding ban in Ala. JAY REEVES, Associated Press
BIRMINGHAM, Ala. (AP) — A retired United Methodist bishop from Tennessee said Monday that he will perform a wedding service for two men in Alabama despite opposition from the presiding bishop, who says the ceremony will violate church law.
Bishop Melvin G. Talbert, who has been active in efforts to eliminate barriers to gay marriage from United Methodist doctrine, said it will be an honor to officiate at the ceremony later this month in metro Birmingham for Joe Openshaw and Bobby Prince.
Talbert said he was contacted by the longtime partners after they learned they could not be married in the area church where they are active members.
While Alabama does not recognize same-sex marriage, the men were married legally in Washington, D.C., last month, Openshaw said. He and Prince want to have a church ceremony at home in Alabama for their family and friends.
"Just like anyone else who is getting married," said Openshaw, 59.
Retired since 2000, Talbert is still active in the United Methodist Church and said he would be subject to the same disciplinary action as active ministers or bishops should someone file complaint over his involvement in a gay wedding.
"I fully expect it to happen," said Talbert, of Nashville, Tenn. "I'm still a bishop and I'm no less accountable than those who are active."
The controversy was first reported in a column published Sunday on AL.com.
The United Methodist Church is the nation's largest mainline Protestant denomination with almost 8 million members, and it has been debating its stance on homosexuality for years.
Methodists, during their last national meeting in 2012, upheld the denomination's 40-year-old policy that same-sex relationships conflict with Christian teaching. Advocates for gay and lesbian Methodists protested the vote, and Talbert publicly offered to perform weddings for same-sex couples.
Talbert said the ceremony for Openshaw and Prince, scheduled for Oct. 26, will be his first time to officiate at a gay wedding.
The ceremony will be performed in a church aligned with a different Christian denomination since Bishop Debra Wallace-Padgett, who oversees United Methodist churches in North Alabama, barred it from occurring at the United Methodist church the men attend in suburban Birmingham.
Wallace-Padgett said she has asked Talbert to reconsider performing the service since official United Methodist doctrine says homosexual practices are "incompatible with Christian teaching."
"Our ministers are not permitted to conduct ceremonies that celebrate homosexual unions or perform same sex wedding ceremonies," Wallace-Padgett said in a statement released on a church website.
While the church officially views homosexuality as sinful, Talbert said he considers it an act of "biblical obedience" as a pastor to offer all ministries of the church to all people, including homosexuals who wish to marry.
Wallace-Padgett said she is concerned that controversy over same-sex marriage would overshadow the church's other ministries in the region.
"For a bishop or any ordained or licensed minister to disregard a law of the church creates a breach of the covenant they made at their consecration, ordination or licensing," she said in the statement.
United Methodist churches have a total membership of about 137,000 people in north Alabama.
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Michigan
Mich. gay marriage lawsuit to go on trial in Feb. ED WHITE, Associated Press
DETROIT (AP) — Same-sex couples queued up all afternoon at county courthouses, some even carrying wedding flowers. Then a federal judge deciding whether to throw out Michigan's gay marriage ban shocked everyone, saying simply: Wait 'til next year.
After hearing arguments and poring over a stack of legal briefs, U.S. District Judge Bernard Friedman said Wednesday he needs to hear from experts on Feb. 25 before settling the fate of a 2004 Michigan constitutional amendment that recognizes marriage as being only between a man and a woman.
"This was never a scenario we imagined," Oakland County Clerk Lisa Brown said. Same-sex couples were at her office, anxious to get a marriage license if the judge ruled in their favor.
"One couple has been together for 53 years," Brown added. "I think they've waited long enough."
The lawsuit, brought by Jayne Rowse and April DeBoer, two Detroit-area nurses in a lesbian relationship, argues that Michigan's constitutional amendment violates the U.S. Constitution's Equal Protection Clause, which forbids states from treating people differently. The amendment was approved by 59 percent of voters in 2004.
Friedman clearly caught lawyers on both sides off guard, as they had agreed to have him decide the issue on arguments and briefs.
More than 100 people were in the courtroom, anticipating a decision in favor of gay marriage, and dozens more watched a video feed of the hearing in a nearby room. A groan went up in that room when Friedman said he's not ready to make a decision.
Thirteen states and the District of Columbia allow gay marriage.
An attorney for Michigan said the U.S. Supreme Court has recognized that states have authority to regulate marriage. Kristin Heyse noted that more than 2.5 million voters supported the amendment.
"The people of the state of Michigan should be allowed to decide Michigan law. This is not the proper forum to decide social issues," Heyse, an assistant attorney general, told the judge.
Rowse, 49, and DeBoer, 42, who have lived together for about eight years, declined comment outside court.
"We were all hoping for an immediate ruling, but they understand it's a very long process," Dana Nessel, co-counsel for the couple, told reporters.
Ninety miles away in Ingham County, Marnee Rutledge and Samantha Wolf were disappointed, too. Rutledge had a pink flower pinned to her shirt, while Wolf carried a bouquet of flowers that Rutledge gave her when proposing earlier in the day. They had a summer ceremony nearby in Holt that wasn't legal.
"We are in our minds married," Wolf said at the courthouse in Mason. "We had a ceremony, we took our vows. That we aren't afforded the same rights as everybody who has stood up in front of their priest and loved ones — that's wrong."
Bonnie Jean of Mount Clemens in suburban Detroit legally married Heidi Jean in 2007 in Ontario, Canada, but said the marriage has no standing in Michigan. Bonnie is due to give birth to a boy in December.
"I'm already married to a woman. It's recognized by the federal government, but not the state," said Bonnie, who attended the hearing.
The state of Michigan says heterosexual marriage provides the best family setting for children, while attorneys for Rowse and DeBoer say research shows there's no difference for kids in same-sex households.
"The parties must be afforded the opportunity to develop their own record in this matter with the benefit of calling witnesses and subjecting them to cross-examination," Friedman said in an eight-page order.
Rowse and DeBoer's lawsuit began as a challenge to a Michigan law that prevents them from adopting each other's kids, but the case took an extraordinary turn a year ago when Friedman suggested they refile it to target the gay marriage ban.
During the hearing, co-counsel Carole Stanyar argued that the Michigan marriage amendment "enshrines" discrimination. She said U.S. history has at times revealed a lack of humanity, "but at times we right ourselves ... and reaffirm the principle that there are no second-class citizens."
Christine Weick drove 175 miles from Hopkins in western Michigan to hold a sign that said God opposes gay marriage. She stood outside the courthouse but across the street from a few dozen gay marriage supporters.
"I said, 'Lord, what if I'm the only one out here?' And look, I'm the only one here," Weick said.
Associated Press writers Corey Williams in Detroit and David Eggert in Mason contributed to this report.
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New Jersey
NJ gay couples argue against waiting to marry GEOFF MULVIHILL, Associated Press
Gay couples will be harmed if the New Jersey Supreme Court delays a lower court's ruling that same-sex marriage be legalized starting next week, a gay rights group said in a court filing Tuesday.
A legal brief Tuesday from Garden State Equality and a group of same-sex couples contends that if couples are not allowed to marry in the state, they'll miss out on several federally provided benefits, including being able to take family medical leave, getting health insurance for partners of federal government employees, being able to file joint income tax returns next year and death benefits from Social Security and other government programs.
The filing is the latest in a volley of legal arguments between gay rights advocates and the administration of Gov. Chris Christie since Judge Mary Jacobson ruled last month that the state must recognize same-sex marriage beginning Oct. 21. She found that a June U.S. Supreme Court ruling that allowed the federal government to recognize gay marriage is the reason that New Jersey must allow gay marriage. If same-sex couples cannot marry here, they can be denied federal benefits, and that would violate the state constitution, the judge ruled.
Christie, a Republican in the midst of a re-election campaign and a possible presidential contender in 2016, has appealed both the ruling and the start date. Christie supports civil unions, which have been the law of the state since 2007 and offer gay couples the legal protections of marriage, but not the title.
The state's top court has set oral arguments for the overall case for Jan. 6 or 7.
But with less than a week before Jacobson's deadline, the court must consider quickly whether to allow gay couples to marry in the meantime. Jacobson last week denied the state's request to delay her order.
The arguments before the Supreme Court are similar to what both sides presented to Jacobson.
The state argues that it has a likelihood of winning the overall appeal, that the authority of the state government's law would be undermined, and that one judge should not have the power to make such a major social change.
The plaintiffs dispute that reasoning. "The state offers no new arguments in support of its contention that this court should grant a stay simply because this case involves constitutional issues that have 'social impact,'" lawyers Lawrence Lustberg and Halyely Gorenberg wrote in their brief.
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North Carolina
Same-sex marriage applicants test NC county MITCH WEISS, Associated Press
ASHEVILLE, N.C. (AP) — For years, Mitch Fortune and Jake Crouch have been prevented from getting married by laws making same-sex marriage illegal in North Carolina.
So when they heard the county's top record-keeper was going to accept same-sex marriage license requests Tuesday, they headed to his office. With his action, Buncombe County Register of Deeds Drew Reisinger became one of the first officials in the South to take such applications from same-sex couples.
"This is a big step," said Crouch, 29, a climatologist who works for the federal government.
Thirty-four-year-old Fortune agreed, adding that they had been discussing marriage for much of their 7-year relationship. They bought a house together in Asheville three years ago.
"I'd like to see this happen soon," he said.
Reisinger accepted marriage license requests from 10 same-sex couples on Tuesday, despite a 2012 amendment to the state constitution forbidding such marriages.
Reisinger said he will hold the licenses and ask state Attorney General Roy Cooper for legal advice. Reisinger said he believes the state's ban is unconstitutional.
Cooper said Monday that he supports gay marriage but will defend the ban. A spokeswoman for Cooper said the licenses cannot be issued.
That position was reinforced Tuesday by Grayson Kelley, the chief deputy attorney general. In a letter to Reisinger, he said state law presently "prohibits the issuance of a marriage license to same-sex couples."
He noted a lawsuit challenging the law is pending. It was filed after a U.S. Supreme Court ruling in June that the federal government can't refuse gay couples equal rights if they've been married in states that recognize same-sex marriage.
"The courts will ultimately decide whether North Carolina's prohibition of same-sex marriages is constitutional," he wrote.
The Campaign for Southern Equality has been working to find someone in each county to issue marriage licenses for same-sex couples as part of its "We Do" campaign.
The group praised Reisinger's decision, but others criticized him.
"You cannot change the law by breaking the law," said Tami Fitzgerald, executive director of the North Carolina Values Coalition.
The Rev. Franklin Graham, head of the Billy Graham Evangelistic Association, the Charlotte-based ministry his father founded, said he was not surprised by the same-sex marriage requests to the county.
"I know it's not over. It's going to be pushed. But the people have spoken in North Carolina," Graham said in an interview. "That's their desire as a state."
Reisinger said he is not breaking the law by simply asking the attorney general for clarification and would abide by Cooper's ruling.
"I understand that not everyone agrees with the step I have taken today, and I am grateful to be part of the continued nationwide dialogue on marriage equality," he said.
As it has elsewhere, gay marriage has become a divisive issue in the state once known for its progressive Southern politics.
State law had already banned gay marriage, but voters in 2012 approved a constitutional amendment defining marriage solely as a union between a man and a woman.
Many in Ashveville are receptive to efforts on behalf of same-sex couples. The bohemian university town in western North Carolina has a large gay and lesbian population.
Two years ago, a same-sex couple was arrested after refusing to leave Reisinger's office when the pair was turned down for a marriage license. The arrests followed a rally that drew 300 people, where same-sex couples were blessed by clergy.
At dawn on Tuesday, about 100 supporters gathered in a downtown church with the couples who planned to apply for the licenses.
The Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, told the crowd they will keep pressing the issue. She called the state's ban on same-sex marriage "morally wrong."
The couples and their supporters then walked a block to Reisinger's office.
The first couple to request a license: Brenda Clark, 66, a retired educator, and Carol McCrory, 70, a lawyer. They have been together for 25 years.
Reisinger congratulated them and said he would ask the attorney general for permission before signing their license.
"I think it's pretty clear that there is a contradiction between state law and federal law, and we want some clarification," Reisinger said.
McCrory praised Reisinger for his courage in accepting their marriage license request. "I'm very proud of you," she said.
Reisinger's announcement Monday that he would accept licenses came hours after Cooper said he supports same-sex marriage. But Cooper also said his personal views won't prevent him from upholding state law.
Thirteen states and the District of Columbia permit same-sex marriages.
Later in the day, Crouch said he and fortune feel at home in Asheville but still have to be careful.
"Being gay in the South is not easy. You second guess yourself if you can even hold hands walking down the street."
Fortune is a wedding planner and sees straight couples getting married each week.
"It's an emotional roller coaster," he said.
AP Religion Writer Rachel Zoll and researcher Judith Ausuebel in New York contributed to this report.
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NC AG Cooper supports gay marriage GARY D. ROBERTSON, Associated Press
RALEIGH, N.C. (AP) — Attorney General Roy Cooper has revealed that he supports same-sex marriage, and he says his personal views won't prevent him from vigorously defending North Carolina's constitutional amendment against such marriages in a lawsuit.
When Cooper opposed passage of the May 2012 amendment prohibiting same-sex marriages, which passed by a comfortable margin, he spoke mostly about the lack of clarity in its language, and had never addressed publicly his views on the issue itself.
But when asked over the weekend by The Associated Press in an interview whether he'd like to see the amendment repealed or a law passed to sanction same-sex marriage, Cooper said: "I support marriage equality."
Cooper is named as a defendant and is the state's lead designated attorney in a lawsuit filed by several same-sex couples that was recently expanded to challenge the constitutionality of the amendment in light of a U.S. Supreme Court decision over the summer.
His announcement worries social conservative groups that supported the amendment's passage but aren't sure that Cooper will robustly defend the state in court. They are particularly unhappy with Cooper for agreeing to speak at next month's annual fundraiser for the gay-rights organization Equality North Carolina. While not a plaintiff in the lawsuit, Equality NC lobbies for expanding rights for gays and lesbians.
Cooper's planned Nov. 9 speech draws "into serious question the intent of the attorney general with respect to the lawsuit," North Carolina Family Policy Council executive director John Rustin said Monday.
"We believe it is inappropriate for him to participate in that event in that fashion while he is ... the lead defense attorney in a case that is attempting to overturn our marriage laws, which is a major goal and agenda of Equality North Caroilna," Rustin said in an interview.
Cooper, a Democrat who is laying the groundwork for a bid for governor in 2016, told the AP he speaks "with many diverse groups all over North Carolina about issues facing this state, and this is no different." Equality NC leaders asked him to speak, Cooper added.
Equality NC executive director Chris Sgro was ecstatic hearing of Cooper's personal support for expanding marriage to include same-sex couples, which is now granted in 13 states and the District of Columbia.
Sgro said Cooper "has long been an advocate for equal rights for all people and we applaud him for publicly aligning" with a "fast-growing majority" of state residents who support legal recognition for gay couples.
Although 61 percent of voters said yes to the constitutional amendment, Sgro dismissed the Family Policy Council as "a small minority" whose opposition to Cooper's gala appearance will energize Equality NC supporters.
Cooper, now in his 13th year as attorney general, said his office has successfully defended other laws from challenges with which he didn't necessarily agree. Cooper and other state attorneys last month filed a motion to have a judge dismiss the federal lawsuit, which also seeks to overturn a state law that says same-sex couples cannot be recognized as equal parents of children.
"You're not going to hear me talk about the legality or constitutionality of any of these statutes that are under litigation. I think it's important for me not to do that," Cooper said before addressing a Democratic Party function in Greensboro. "However, I will engage in public policy discussions and I want to do that."
Republican Gov. Pat McCrory and GOP legislative leaders already have expressed apprehension about Cooper's legal role.
The General Assembly passed a law this year giving itself the authority to defend itself in court with its own lawyers, rather than relying on Cooper's office. And McCrory announced he had hired a private attorney to work with Cooper defending litigation challenging an election overhaul bill that in part requires photo identification to vote in person in 2016.
McCrory general counsel Bob Stephens told reporters two weeks ago that Cooper's strong personal opposition to the elections law "compromised his ability to represent the state of North Carolina." Cooper said he can set aside his personal views to carry out his constitutional duties as the state's top lawyer.
Cooper's office didn't object in July to the American Civil Liberties Union and attorneys for six same-sex couples who sued over the adoption law to amend the lawsuit to challenge their prohibition to get married.
In last month's dismissal motion, state attorneys argued that regulation of marriage and child adoption are traditionally reserved to the states without federal intervention. Same-sex marriage or adoption rights are not fundamental rights, according to the motion.
"The right for a man and a woman to marry is fundamental, the right to other unions, including same-sex marriage, is not," reads the motion, submitted Sept. 11 on behalf of Cooper by four other state attorneys.
Utah
UT cites procreation in lawsuit over gay marriage
SALT LAKE CITY (AP) — Attorneys for the state of Utah are defending a state constitutional amendment that defines marriage as a union of a man and woman, saying it promotes the state's interest in "responsible procreation" and the "optimal mode of child-rearing."
The state, in motions filed Friday, asked U.S. District Judge Robert J. Shelby of Salt Lake City to find in its favor in a lawsuit over voter-approved Amendment 3 filed by three same-sex couples who maintain it's unconstitutional.
A hearing on the summary judgment motions is set for Dec. 4 before Shelby. If Shelby declines to grant summary judgment to either side, the case will proceed for a trial.
The state's motion notes Utah is the most-married and "child-centric" state in the nation, and says the state has a right to set as policy an "age-old and still predominant" definition of marriage, The Salt Lake Tribune reported.
"Same-sex couples, who cannot procreate, do not promote the state's interests in responsible procreation (regardless of whether they harm it)," the state argues.
The state further argues the case is "really about who decides, not who is right in this important policy debate," and that Amendment 3 does not discriminate because "neither a man nor a woman may marry a person of the same sex."
The outcome of the case will impact state sovereignty and states' preference for children to be raised by married couples when possible, the state adds.
But in their motions filed Friday, attorneys for the same-sex couples maintain the choice of a marriage partner is a "fundamental right and liberty interest" protected by the U.S. Constitution and that the state amendment approved in 2004 discriminates against gays and lesbians.
The couples cite cases that have defined the freedom to marry as one of the "vital personal rights essential to the orderly pursuit of happiness."
To restrict that right, the state must show its "marriage discrimination laws" are designed to meet a compelling government interest, they add. Amendment 3 fails that test because it furthers a moral view that same-sex couples are immoral and inferior to opposite-sex couples, they argue.
"The state has not identified a single harm that it, or anyone else, would suffer as a result of allowing plaintiffs to exercise their constitutionally protected autonomy to choose a marriage partner of the same sex," the plaintiffs say.
The couples, who were denied a marriage license by the Salt Lake County Clerk's Office, filed affidavits Friday describing how they feel the state's ban has caused them humiliation, emotional distress, pain, psychological harm and stigma.
The lack of public recognition of their relationships creates challenges that range from not being able to share gym memberships to confusion about how to fill our car rental and hotel forms and secure assets, they say.
The couples say other harms include not being able to jointly file federal and state tax returns in Utah and to have their joint holdings recognized as marital property.
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October 17, 2013